Which culture is commercial in nature? Forms of culture

When committing a crime, a person is sometimes mistaken about the actual circumstances of the crime or its legal assessment. For example, the guilty person believes that he is causing the death of B., but in reality he is taking the life of A. Or he is convinced that his actions cannot lead to the death of the victim, but they actually lead to such a result. A misconception cannot be ignored when qualifying the actions of the perpetrator when the mistake concerns a fact that forms an element of the crime. When qualifying a crime, they always proceed from the person’s subjective idea of ​​what was done, correlating this idea with the objective circumstances of the incident. In other words, both what is objectively committed and what is subjectively perceived are equally important when qualifying a crime. However, when what is subjectively perceived and what is objectively accomplished do not coincide, preference should be given to the subjective.

Under error in criminal law refers to the delusion of a person when committing a crime regarding the legal characteristics or factual circumstances of this criminal act.

The Criminal Code does not contain special rules defining the concept, types and impact of error on the content of guilt and criminal liability. These issues are resolved by the science of criminal law and practice. Science has proposed various classifications errors. However, the most recognized is the classification of errors into legal and factual.

Legal error is a person’s misconception regarding legal characteristics the committed act and its legal consequences.

Such an error may consist in a person’s misconception regarding the illegality of an act in general or regarding its legal qualification or regarding the type and amount of punishment. As a general rule, a legal error does not affect the form of guilt and criminal liability. However, if a person’s misconception regarding the illegality of his actions was excusable, then such a misconception excludes the person’s criminal liability due to the absence of his guilt. IN in some cases to a person who has committed an intentional crime under the influence of such an error, the court may apply the rule of imposing a more lenient punishment than provided for by law.

Factual error- this is a person’s misconception regarding the actual circumstances of the committed act.

An error is distinguished in the object, the objective properties of the action (inaction), in the causal connection, in relation to circumstances aggravating and mitigating the punishment. The literature also distinguishes between factual errors in the means and method of committing a crime, in the subject of the attack, etc. Factual circumstances characterizing the main or qualified personnel, which were not known to the person when committing the crime, cannot be imputed to him as intentional guilt. This provision also applies to acts committed through negligence, if this ignorance in itself does not constitute negligence. In the event of a mistake of fact, the criminal liability of a person must be determined taking into account the direction of his intent. If a person believes that he is stealing objects or documents that have special historical, scientific, artistic or cultural value, but actually takes possession of objects that do not have such value, what he has done should be qualified as an attempted theft of objects of special value (Article 164 of the Criminal Code).

According to the rules of error in the object, the issue is resolved in the event of a person’s mistake regarding the factual circumstances characterizing the objective side of the crime.

Depending on the content of the circumstances that are incorrectly perceived by the subject, two types of errors are distinguished: legal and factual.

Legal error- a person’s incorrect understanding of the legal nature of the act being committed, its legal assessment and consequences.

In criminal legal theory, this type of error is sometimes called "mistake of law". Legal errors are usually divided into 3 types:

- mistake in the criminality of the act, the person believes that his actions are criminal and entail criminal liability, whereas they are not provided for by the Criminal Code . In the non-criminal act, when a person believes that the act he has committed does not entail criminal liability, but the Criminal Code classifies such an act as a crime.

- error in classifying the crime, for example, a person steals property from a store and believes that his actions are covered Part 3 of Article 185 of the Criminal Code(committing theft by entering the premises), but the investigator classifies his actions as theft committed on a large scale (Part 4 of Article 185 of the Criminal Code). Such a mistake by a person, as a rule, does not affect the qualifications and entails criminal liability for the person.

- error in the amount of punishment. Such a mistake does not affect liability, since the type and amount of punishment are beyond the subjective side.

Factual error- This a person’s incorrect understanding of the circumstances that form the objective signs of a specific crime.

At actual In an error, a person correctly assesses the legal characteristics of a certain act as a specific crime, but is mistaken in its factual characteristics.

Depending on the content of which objective characteristics the person is mistaken in, the following types of factual errors are distinguished:

a) an error in an object may consist of an error in quantitative or qualitative characteristics socially dangerous consequences.

b) an error in the nature of the act (action or inaction), that is, an error in the nature of the harm, may consist of failure to foresee the harm that actually occurred, and, conversely, in the foresight of the harm, it did not occur.

c) an error in causation affects the qualification of the crime (the determination of the form of guilt, the stage of the crime and responsibility). Because the error is in these general outline causation excludes a person’s responsibility for those desired or expected criminal consequences if there is a significant discrepancy between the way the consequences should have occurred and the actual development of the causal connection.

d) mistake in the identity of the victim. consists of harming one person who is mistaken for another. The culprit, wanting to kill S., kills V., mistakenly mistaken for S. Such a mistake cannot influence the form of guilt and responsibility, because the life of any person (namely, life is the object here) is equally protected by criminal law. The culprit in this situation was not mistaken in that he was encroaching on a person’s life. Consequently, his responsibility should be for premeditated murder.

Criminal law is based on the principle of guilty responsibility of a person for an act committed by him. Guilt presupposes the correct and adequate reflection in the consciousness of the subject of both factual and legal signs of the crime. However, in life there are cases when a person, committing a specific act, is mistaken in its factual characteristics (the nature of the object or subject of the action, consequences, causation) or incorrectly assesses its legal nature, legal properties. In these cases, the person’s consciousness forms an idea of ​​objective reality. This can be caused by various objective and subjective circumstances under which the action is performed, and can have a different impact on resolving questions about a person’s guilt and criminal liability.

A factual error is a person’s incorrect understanding of the factual circumstances related to the object and objective side of the crime.

In accordance with this, a factual error may be an error in the object, objective signs of an action (inaction), in the development of a causal relationship, an error in aggravating circumstances.

Science also distinguishes between errors in the means and method of committing a crime, in the subject of the attack, etc.

Types of factual errors can be divided into the following:

1. Error in the Criminal Law object Russian Federation. General part: Textbook. Workshop / Ed. A. S. Mikhlina. M., 2004, p. 167.

Giving a bribe to the director of a commercial enterprise is associated in the minds of the perpetrator with giving a bribe to a government official (the director of a private security company is mistaken for an employee of the internal affairs bodies). Such a crime is classified depending on the intent of the perpetrator, in in this case as an attempt on an act provided for in Art. 291 of the Criminal Code of the Russian Federation. See: Criminal Code of the Russian Federation, Chapter 30, Art. 291"Giving a Bribe"

It's another matter when we're talking about about an error in the assessment of the object. By stealing a weapon, the perpetrator may regard his actions as theft, although in this case we are talking not only about an attack on property, but also on public safety, which is the defining object of the crime. Such an error is a type of legal error and therefore the person will be held accountable for the crime that he actually committed, i.e. according to Art. 226 of the Criminal Code of the Russian Federation See: Criminal Code of the Russian Federation, Chapter 24, Article 226 “Theft or extortion of weapons, ammunition, explosives and explosive devices.”.

• 2. An error in the subject and in the identity of the victim does not have criminal legal significance (breaking into a safe that did not contain the large amount of money that the perpetrator was counting on). The theft actually committed must be qualified as attempted theft in large size, if this was covered by the intent of the criminal.
• 3. Error regarding the nature of the committed action Naumov A.V. Russian criminal law. Lecture course. In 2 vols., M., 2004, p. 249--250.

A person sells a counterfeit currency note without realizing it. In relation to ordinary citizens, this will not entail liability due to the lack of guilt. If the subject is a cashier who is obliged to check banknotes, and his actions are found to be carelessly at fault, then this can be regarded as a type of negligence. Or this example: K., wanting to scare M., pointed a gun at him, believing that it was not loaded, pulled the trigger, resulting in a shot, with which M. was mortally wounded. In this case, an error regarding factual circumstances excludes intent in K’s actions. If the error was the result of frivolity or negligence, as in the example given, then, if the conditions specified in the law are present, the person may be liable for reckless guilt. Criminal law of the Russian Federation. General part: Textbook. Workshop / Ed. A. S. Mikhlina. M., 2004, p. 167.

• 4. An error regarding socially dangerous consequences most often consists of a person’s erroneous understanding of the amount of harm caused by a crime. If the intent of the perpetrator was vague, that is, he did not have specific intentions regarding the amount of damage, then qualification occurs based on the consequences that actually occurred. If we are talking about specific intentions that for some reason did not lead to the desired result, then this is regarded as an attempt on this result.
• 5. An error in assessing the development of a causal relationship lies in the person’s incorrect understanding of the cause-and-effect relationship between the act he committed and the consequences. Thus, the intent to kill a person placed in a cage with wild animals presupposed death from tearing to pieces. In fact, death occurs from a heart attack caused by severe fright. The perpetrator must be held accountable for murder and attempted murder with particular cruelty.

N. and M., drunk, were returning home from a party. Along the way they quarreled and fought. N. struck M. many times on the head with an awl. Believing that M. is dead, N., in order to hide crime committed threw the victim into a puddle. According to the conclusion of the forensic medical examination, M.'s death was caused by aflexia (water entering the respiratory tract). N. was correctly convicted of premeditated murder. Criminal law of the Russian Federation. General part: Textbook. Workshop / Ed. A. S. Mikhlina. M., 2004, p. 169.

6. An error in circumstances qualifying liability is a type of error related to the objective signs of an act, and is assessed depending on the guilt of the offender.

In judicial practice, the question of error in aggravating circumstances often arises. A person’s misconception regarding these circumstances must be resolved taking into account the direction and content of the person’s intent. If a person believes that he is committing a crime in the presence of aggravating circumstances, although there are none, then he is subject to liability for a crime committed under aggravating circumstances. Aggravating circumstances, the existence of which the person who committed the crime did not know, cannot be imputed to him. Commentary on the Criminal Code of the Russian Federation with article-by-article materials and judicial practice / Under the general. ed. S.I. Nikulina. M., 2000, p.339.

7. An error in the means of committing a crime affects the qualification of the offense if they are included in the mandatory elements of the crime. For example, armament in banditry presupposes the presence of real weapons, and not mock-ups or faulty equipment.

From the above it follows that a factual error occurs at the stage of planning and implementation of the plan under the influence of erroneous ideas about the actual circumstances of the act. In the process of implementation, harm is caused to social relations protected by another criminal law.

Features of a factual error allow us to deduce a close connection between the mistake made by the perpetrator and mental processes happening in his mind. But the choice of a solution, an option of behavior depends on the consciousness of a person. Any offense, like a lawful action, has causes and conditions rooted both in objective reality and in the subjective qualities of a person. In this sense, an offense is also a product of objective reality. But objective factors cannot downplay the importance of a person’s intellect and will, without whose participation it is impossible to commit an offense. Criminal law: General part: Textbook. / Ed. B.V. Zdravomyslova, M.A. Telfera, P.I. Grishaeva / M.: Legal. lit., 1982. p. 156.

In case of a factual error, the subject, interacting with environment, allows a misconception regarding his own actions, which leads to an erroneous reflection in his consciousness of the criminal act as completed. In reality, not all the elements of a crime provided for by the relevant article of the Criminal Code of the Russian Federation or its part that protects social relations are present, the intention of the perpetrator is aimed at causing harm, and the harm is actually caused to other social relations.

It should be noted that if a person, in the process of committing a crime, realizes that harm is being caused to another object and as a result stops the implementation of his criminal plan, then the act is qualified as an attempt on his intended crime or voluntary refusal. If a person, realizing that he is causing harm to another object, continues to perform the objective side, then the act involves intentional or careless harm to the object that was actually injured. These cases have no relation to the actual error. Thus, one of the features of a factual error is that the perception of the perpetrator does not coincide with what is objectively happening. A person is mistakenly confident that he has completely fulfilled the objective side of a particular crime, while the harm was actually caused to other social relations.

In case of a factual error, the culprit is aware of the illegality of his actions, and this error can only arise when the person acts with direct, specific intent and accurately imagines a certain result of his actions (inaction). If a person, for example, is indifferent to the consequences that may occur as a result of his act (indirect intent) or assumes the occurrence of one of several possible consequences (unspecified intent), an error is impossible: the consequence that actually occurred was covered by the consciousness of the perpetrator, while as a factual error is a person’s misconception about the occurrence of the desired criminal result. Bezrukova T.I. The problem of qualifying an act committed in conditions of a factual error // Russian Legal Journal. 2007. No. 3. p. 149-153.

Consequently, a factual error is present in cases where the subjective side of the crime is expressed in the form of direct, specific intent, i.e. when the perpetrator knows exactly what criminal act he wanted to commit (in relation to this act he believes his actions (inaction) are completely completed, and criminal result occurred).

Thus, in judicial practice, the position is reflected that in the event of a factual error, the act must be qualified as completed, based on the actually committed socially dangerous act. Criminal law: General part: Textbook for universities / Rep. ed. AND I. Kozachenko, Z.A. Neznamova, G.P. Novoselov. M.: Publishing group INFRA-M-NORMA, 1997. p. 210. However, if the intent of a person was initially aimed at carrying out the objective side of one socially dangerous act, and in relation to the crime he committed, with a factual error made, there is no both intent and negligence, then the person is unreasonably brought to criminal liability for the socially dangerous consequences that have occurred, in in respect of which he is not at fault.

Thus, the peculiarity of a factual error is that, as a result of an incorrect reflection of reality, a person commits an act containing signs (not all) of the crime that was covered by his intent (since he believes it to be completed) and certain signs of another crime (damage caused to social relations , protected by another criminal law). Bezrukova T.I. Classification of legal errors // Law enforcement agencies. 2006. No. 1-2. With. 62-64. General rule for all types of mistake of fact is that liability must be determined in accordance with fault, i.e. based on what the perpetrator was or should have been aware of at the time the crime was committed.

A mistake is a misjudgment by the person committing the crime of his or her behavior or its consequences. In the science of criminal law, a distinction is made between legal and factual errors.

A legal error is a person’s misconception about the punishability or non-punishability of his action (inaction) and the legal consequences. There are three such errors.

1. Imaginary crime. A person believes that his actions (inaction) are criminal, while the criminal law does not consider them as such.

2. A person does not consider his actions to be criminal, while the law regards them as a crime. Responsibility for the crime committed follows the rule: “Ignorance of the law does not exempt you from responsibility.”

3. A person’s incorrect understanding of the legal consequences of committing a crime, its qualifications, the type and amount of punishment that can be imposed for committing this act. The named circumstances are not included in the content of intent, they are not a mandatory subject of consciousness, therefore their erroneous assessment does not affect the form of guilt and does not exclude criminal liability.

The general rule regarding all types of legal errors is that the criminal liability of a person who makes errors regarding the legal properties and legal consequences of the act committed depends not on his subjective assessment, but on the assessment of the legislator, expressed in specific articles of the Criminal Code. A legal error does not affect the resolution of the issue of criminal liability.

A factual error is a person’s misconception regarding factual circumstances, relating mainly to two elements of the crime - the object and the objective side. In addition, the criminal law literature highlights errors in the nature of the action performed, circumstances aggravating liability, etc.

An error of fact refers to an error in the object of a crime, in which a person believes that he is causing harm to one social relationship, while in reality the harm is caused to another relationship.

For example, a person transfers money or valuable property to a manager commercial bank in order for him to help him get a loan on favorable terms, while the person believes that he is giving a bribe official. Thus, the person believes that he is causing harm state power, interests civil service and services in authorities local government(see Chapter 30), but in fact the harm was caused to other relationships - the interests of service in commercial and other organizations (see Chapter 23).

IN similar cases the actions of the guilty person are qualified according to the direction of intent, however, due to the fact that in reality no harm was caused to the intended relationship, the person is responsible for the attempt, and not the completed act. In addition, the person will also be responsible for the completed crime that was actually committed. In our example, the person will be held liable for attempted bribery (Part 3 of Article 30, 291) and for commercial bribery (Part 1 of Article 204).

Error in the subject of the crime. Its essence is that the perpetrator causes damage (harm) to the object he intended, but is mistaken about the object. Thus, by participating in theft from containers transported on open platforms railway, the thieves took three boxes, which, in their opinion, contained small-sized Japanese transistors. In fact, the stolen boxes contained deodorants and Eau de Toilette in boxes similar in shape to transistor packaging. An error in the subject of the attack does not affect the resolution of the issue of criminal liability of persons who caused damage to the object - someone else's property.

An error in the identity of the victim also affects qualifications only if it is simultaneously associated with the person’s confusion about the object of the crime. For example, a person, believing that he is committing an attack on the life of a law enforcement officer (Article 317), is actually committing the murder of another person (Article 105). Responsibility in this case also occurs according to the direction of intent of the subject of the crime, i.e. for attempted first crime (Part 3 of Article 317) and completed second crime (Part 1 of Article 105). If a person, intending to commit the murder of A., mistakenly kills B., then he is responsible for the completed murder of a person (Article 105). There is no substitution of the object: in both cases it is a person’s life, regardless of the identity of the victim.

An error regarding socially dangerous consequences may concern either qualitative or quantitative characteristics this objective sign.

Errors related to the objective side of the crime may concern any legally significant feature of the objective side.

In the theory of criminal law to this species include:

1) an error in the development of a causal relationship;

2) an error in the means of committing a crime.

The essence of an error in the development of a causal relationship is that a person, when committing a crime, is mistaken about the development of the causal relationship between his action and the onset of socially dangerous consequences. As a result, harm is culpably caused to several objects of criminal law protection at the same time.

So, the owner of a car, having violated the rules traffic, hit a cyclist riding along the side of the road, which caused painful shock and loss of consciousness for the victim. Considering him dead and wanting to hide the crime, the culprit, without making sure of his death, throws the body into the river and throws the bicycle into the bushes. However, as a forensic autopsy shows, the cyclist died from asphyxia (water entering the respiratory tract). The culprit must be held accountable for harm caused in the conditions of a factual error in the development of a causal relationship under two articles of the Criminal Code: Art. 264 - for violating traffic rules that resulted in serious harm to health, and Art. 109 of the Criminal Code - for causing death by negligence.

An error in means is expressed in the use by a person of a means other than what was planned to commit a crime.

This type is possible in the following situations:

1. Another means that is equally suitable for achieving a criminal result is used by mistake. For example, the perpetrator of the fraudulent receipt of goods using a fake invoice is sure that the accomplice has prepared a completely new document for him, whereas in fact only some details were falsified in the genuine invoice, making it possible to obtain the goods fraudulently. This error in means has no legal significance.

2. To commit a crime, a means is used, the strength of which, in the erroneous opinion of the subject, appears to be underestimated. Having fenced the fence around the dacha with wire and passed a current of 60 volts through it, the person believes that such voltage cannot be dangerous to the lives of thieves, but can only scare them away. A boy who accidentally touched a wire wet after rain was electrocuted. Liability in this case occurs, if all other conditions are met, as for a careless crime.

3. To commit a crime, a means that turns out to be unsuitable is used by mistake. S., having decided to kill Sh. for reasons of revenge, aimed a gun at him and pulled the trigger. The shot did not fire due to a malfunction of the trigger mechanism. The perpetrator must be held responsible for attempted murder, since the means he used for this purpose proved unsuitable only in this case. His actions are socially dangerous and punishable.

23. Concept, types and criminal legal significance of legal and factual errors.

Legal error- this is an incorrect assessment by the perpetrator of the legal essence or legal consequences of the act committed.

Types of legal error: 1)error in criminal law prohibition- an incorrect assessment by a person of the act he commits as non-criminal, not criminally punishable, whereas in reality it is recognized as a crime in accordance with the law. An erroneous assessment by a person of the act being committed as criminal, when in fact the law does not classify it as a crime (“imaginary crime”). For example, the “stealing” of items discarded due to wear and tear car tires is not criminal due to the absence of an object of attack, therefore there is no guilt in its criminal legal meaning; 2) a person's misconception about the legal consequences of the crime being committed: about his qualifications, the type and amount of punishment that may be imposed for committing this act.

The meaning of a legal error.

Criminal liability of a person who is mistaken regarding the legal properties and legal consequences of the act committed occurs in accordance with the assessment of this act not by the subject, but by the legislator.

Factual error- this is a person’s incorrect understanding of the factual circumstances that play the role of objective signs of the corpus delicti of a given crime and determine the nature of the crime and the degree of its social danger.

Types of factual error:

1)error in object- this is a person’s incorrect understanding of the social and legal essence of the object of encroachment. There are two possible types of such an error: a) substitution of the object of the attack, in which the subject of the crime mistakenly believes that he is encroaching on one object, while in reality the damage is caused to another object, dissimilar from the one covered by the intent of the perpetrator; b) ignorance of the circumstances due to which the social and legal assessment of an object in the law changes;

2)error in the nature of the action taken (or inaction) may be of two kinds. Firstly, a person incorrectly assesses his actions as socially dangerous, whereas they do not have this property. Such an error does not affect the form of guilt, and the act remains intentional, but responsibility comes not for the completed crime, but for the attempt on it, since the criminal intent was not realized. Secondly, a person mistakenly considers his actions to be lawful, not realizing their social danger. Such an error eliminates intent, and if an act is recognized as criminal only if it was committed intentionally, then criminal liability is also excluded. if the act is recognized as criminal even with a careless form of guilt, then responsibility for a careless crime occurs only on the condition that the person should and could have realized the social danger of his action or inaction and foreseen its socially dangerous consequences;

3)mistake regarding socially dangerous consequences may relate to either the qualitative or quantitative characteristics of this objective characteristic. Error regarding quality, i.e. the nature of socially dangerous consequences may consist in foreseeing such consequences that actually did not occur, or in not anticipating such consequences that actually occurred. An error regarding the severity of socially dangerous consequences means an error in their quantitative characteristics. The occurrence of a more serious consequence than the subject intended excludes liability for its intentional infliction. If, in this case, the infliction of a more serious consequence was covered by careless guilt, then along with responsibility for the intentional infliction of the intended consequence, responsibility also arises for the careless infliction of a more serious consequence;

4)error in the development of causality means an incorrect understanding by the perpetrator of the cause-and-effect relationship between his act and the onset of socially dangerous consequences. If, as a result of criminal actions, the result that was covered by the intention of the perpetrator occurs, then the error in the causal connection does not affect the form of guilt. In cases where a consequence covered by intent actually occurs, but is the result not of the actions with which the perpetrator intended to cause them, but of his other actions, an error in the development of a causal relationship entails a change in the classification of the act;

5)error in aggravating circumstances, consists in the erroneous idea of ​​the absence of such circumstances when they exist, or of their presence when in fact they are absent. In these cases, liability is determined by the content and direction of intent.

The value of the actual error.

In the case of a factual error, criminal liability must be determined taking into account the intent of the guilty person. Taking into account the direction of intent, the issue of liability must be resolved in the event of a person’s mistake regarding the factual circumstances characterizing the objective side of the crime.